Citation Nr: 0939895
Decision Date: 10/21/09 Archive Date: 10/28/09
DOCKET NO. 07-12 778 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to an initial rating in excess of 10 percent for
bilateral plantar fasciitis with calcaneal spurs.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
John Francis, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1976 to July
2006.
This appeal comes before the Board of Veterans' Appeals
(Board) from a September 2006 rating decision of a Department
of Veterans Affairs (VA) Regional Office (RO) that, in
pertinent part, granted service connection with
noncompensable ratings for right and left foot plantar
fasciitis with heel spur.
In June 2009, the RO granted an increased initial rating of
10 percent for bilateral plantar fasciitis, effective the day
following retirement from service.
The Veteran testified before the Board sitting at the RO in
August 2009. A transcript of the hearing is associated with
the claims file.
FINDINGS OF FACT
1. Prior to January 24, 2007, the Veteran was pain free with
the daily use of orthotics. No foot abnormalities were noted
on examination, and X-rays showed normal bone and joint
structures with a tiny spur in the dorsal and plantar aspect
of the right calcis.
2. Starting on January 24, 2007, the Veteran bilateral
plantar fasciitis is manifested by abnormal weight bearing
and callosities, abnormal gait, subcutaneous swelling on
ultrasound imaging, minor pronation, and the need for more
aggressive treatment with injections and foot strapping.
CONCLUSIONS OF LAW
1. The criteria for an increased initial rating in excess of
10 percent for plantar fasciitis prior to January 24, 2007
have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§§ 3.321, 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a,
Diagnostic code 5276 (2009).
2. The criteria for an increased staged rating of 30
percent, but not greater, for plantar fasciitis with
calcaneal spurs, effective January 24, 2007, have been met.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3,
4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic code 5276
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide and; (3) that the claimant is expected to provide.
See 38 C.F.R. § 3.159(b)(1). This notice must be provided
prior to an initial unfavorable decision on a claim by the
agency of original jurisdiction. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi,
18 Vet. App. 112 (2004).
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S.
Court of Appeals for Veterans Claims (Court) further held
that, upon receipt of an application for a service-connection
claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require
VA to review the information and the evidence presented with
the claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating, or is necessary to
substantiate, each of the five elements of the claim,
including notice of what is required to establish service
connection and that a disability rating and an effective date
for the award of benefits will be assigned if service
connection is awarded.
Here, the veteran is challenging the initial evaluation
assigned following the grant of service connection. In
Dingess, the Court of Appeals for Veterans Claims held that
in cases where service connection has been granted and an
initial disability rating and effective date have been
assigned, the typical service-connection claim has been more
than substantiated, it has been proven, thereby rendering
section 5103(a) notice no longer required because the purpose
that the notice is intended to serve has been fulfilled. Id.
at 490-91. Thus, because the notice that was provided before
service connection was granted was legally sufficient, VA's
duty to notify in this case has been satisfied.
In addition, VA has obtained all relevant, identified, and
available evidence and has notified the appellant of any
evidence that could not be obtained. VA has also obtained a
medical examination. Thus, the Board finds that VA has
satisfied both the notice and duty to assist provisions of
the law.
The Veteran served in the U.S Air Force with duties as a
command pilot. He retired after thirty years of active
service at the rank of Colonel. He contends that his
bilateral plantar fasciitis with calcaneal spurs is more
severe that is contemplated by the current initial rating.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4. Separate rating codes identify the various
disabilities. 38 C.F.R. Part 4. Where there is a question
as to which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7. Any reasonable doubt regarding the degree of disability
is resolved in favor of the veteran. 38 C.F.R. § 4.3. Since
the Veteran timely appealed the rating initially assigned for
his disability, the Board must consider entitlement to
"staged" ratings to compensate for times since filing the
claim when the disability may have been more severe than at
other times during the course of the appeal. See Fenderson
v. West, 12 Vet. App. 119, 125-26 (1999); Hart v. Mansfield,
21 Vet. App. 505 (2007).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portrays the anatomical damage
and the functional loss with respect to all these elements.
The functional loss may be due to absence of part, or all, of
the necessary bones, joints and muscles, or associated
structures, or to deformity, adhesions, defective
innervation, or other pathology, or it may be due to pain,
supported by adequate pathology and evidenced by visible
behavior of the claimant undertaking the motion. Weakness is
as important as limitation of motion, and a part which
becomes painful on use must be regarded as seriously
disabled. 38 C.F.R. §§ 4.40, 4.45.
Codes predicated on limitation of motion do not prohibit
consideration of a higher rating based on functional loss due
to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40,
4.45, 4.59. Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca
v. Brown, 8 Vet. App. 202, 206 (1995). A finding of
dysfunction due to pain must be supported by, among other
things, adequate pathology. 38 C.F.R. § 4.40.
"[F]unctional loss due to pain is to be rated at the same
level as the functional loss when flexion is impeded."
Schafrath, 1 Vet. App. at 592. Evaluating the disability
under several diagnostic codes, the Board considers the level
of impairment of the ability to engage in ordinary
activities, including employment, and assesses the effect of
pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45,
4.59; DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).
When an unlisted condition is encountered, it is permissible
to rate the disability under a closely related diagnostic
code in which not only the functions affected, but the
anatomical localization and symptomatology are closely
analogous. 38 C.F.R. § 4.20. However, evaluation of the
same disability under various diagnoses is to be avoided.
Disability from injuries to the muscles, nerves, and joints
of an extremity may overlap to a great extent, so that
special rules are included in the appropriate bodily system
for their evaluation. 38 C.F.R. § 4.14; see also Fanning v.
Brown,
4 Vet. App. 225 (1993). The critical element is whether the
symptomatology for any one of multiple conditions is
duplicative or overlapping with the symptomatology of the
other conditions. Esteban v. Brown, 6 Vet. App. 259, 262
(1994).
The regulations do not contain a diagnostic code for plantar
fasciitis. The Veteran's bilateral foot disability is
currently rated by analogy using Diagnostic Code 5276 for
acquired flatfoot. The Board notes that as there is no
evidence of weak foot, claw foot, hallux valgus, hallux
rigidis, hammer toe, malunion of bones, or foot injury, the
diagnostic criteria applicable to those disabilities do not
apply. 38 C.F.R. § 4.71a, Diagnostic Codes 5277 to 5284
(2009). The Board concludes that the criteria for acquired
flatfoot best address the affected anatomical location and
the specific symptoms experienced by the Veteran.
Bilateral acquired flatfoot warrants a noncompensable rating
for mild symptoms relieved by built-up shoe or arch supports.
A 10 percent rating is warranted for moderate bilateral or
unilateral symptoms with weight bearing line over or medial
to the great toe, inward bowing of the tendo achillis, and
pain on manipulation and use of the feet. A 30 percent
rating if the bilateral disorder is severe with objective
evidence of marked deformity (pronation, abduction, et
cetera), pain on manipulation and use accentuated,
indications of swelling on use, and characteristic
callosities. A maximum 50 percent rating is warranted if the
disorder is pronounced with marked pronation, extreme
tenderness of plantar surfaces of the feet, marked inward
displacement and severe spasm of the tendo achillis on
manipulation, not improved by orthopedic shoes or appliances.
38 C.F.R. § 4.71a, Diagnostic Code 5276.
Service treatment records showed that the Veteran was
diagnosed with bilateral plantar fasciitis in the 1990s. The
Veteran received cortisone injections that were not
successful. He was issued orthotic inserts that provided
some relief.
The Veteran underwent a pre-retirement VA general medical
examination in March 2006. The examining physician noted the
history of foot treatment and the Veteran's reports of being
pain free as long as he wore the orthotics every day. At the
time of his examination, the Veteran was not experiencing
pain, and the physician noted no foot abnormalities. X-rays
showed normal bone and joint structures and a tiny spur in
the dorsal and plantar aspect of the right calcis. The
physician diagnosed bilateral plantar fasciitis, quiescent
with current treatment.
In December 2006, a private primary care physician noted the
Veteran's history of intermittent plantar fasciitis but made
no clinical observations or additional diagnoses. However,
the Veteran was referred to a private podiatrist for
evaluation of the disorder.
In January 2007, the podiatrist noted the Veteran's reports
of plantar foot pain on rising in the morning and increasing
during the day with walking. The Veteran reported the use of
soaks and shoes with an arch without much relief. On
examination, the podiatrist noted no vascular or neurological
deficits. The podiatrist noted pain on palpation of the
medial aspect of the heel, greater on the left than right,
with shooting pain to the medial aspect of the ankle and
plantar medial aspect of the foot. There was no deformation,
swelling, warmth, or erythema of the heel. The podiatrist
did not comment on weight bearing or gait. However,
ultrasound imaging showed fusiform (spindle-shaped) swelling
at the insertion of the plantar fascia. The podiatrist
attributed the major cause of the discomfort to instability
of the subtalar joint and recommended corticosteroid
injections, stretching exercises, and strapping of the foot
to stabilize the joint.
In a February 2007 follow-up examination, the podiatrist
noted that the Veteran continued to experience pain of the
left foot. The podiatrist also noted talipes equinus of the
Achilles tendon and ankle joint dorsiflexion that caused
adduction and plantar flexion of the subtalar joint resulting
in an abnormal gait. The podiatrist noted a calcaneal spur
on examination, and ultrasound imaging continued to show
fusiform swelling. However, there was "not a great deal"
of externally observable swelling, and no deformity, warmth,
or erythema. The Veteran underwent a course of injections.
Another follow-up examination in March 2007 showed the same
symptoms, observations, and diagnoses with an additional
recommendation for extracorporeal shockwave therapy.
VA outpatient clinicians in February 2007 and January 2009
noted that the Veteran continued to experience plantar
fasciitis with some relief with the use of orthotics. In
June 2009, a clinician noted moderate callus formation over
the right and left large toe and bilateral heel calluses with
tenderness over the plantar fascia.
In August 2009, the Veteran was examined by a VA fee-service
podiatrist. The examination report was dated in July 2009
and signed in August 2009, but the Veteran reported at his
hearing that he was examined only once in August 2009. The
podiatrist noted that neither the claims file nor the
Veteran's VA medical records were available for review. The
podiatrist noted the Veteran's report of plantar heel pain
and stiffness while standing and walking. The Veteran
reported that he could stand for greater than one but less
than three hours and walk one to three miles. The Veteran
reported using medication for pain and custom orthotics with
partial or fair results. On examination, the podiatrist
noted tenderness to palpation of the bilateral plantar heels
and three degrees mild pronation but no abduction. There was
no additional pain on motion and no swelling, instability, or
weakness. The podiatrist noted callosities indicative of
abnormal weight bearing. However, the Veteran displayed a
normal stride length and cadence with no antalgic gait. The
podiatrist noted that the disorder prevented participation in
sports, severely limited exercise, but imposed only a mild
limitation of other forms of recreation and no limitation of
any other daily activities. The Veteran did not report that
he was employed nor did the podiatrist comment on any
limitations in employment activities.
In an August 2009 Board hearing, the Veteran stated that he
experienced bilateral foot pain especially in the morning and
later in the day if he stood or walked for an extended time.
The Veteran stated that he worked as a substitute school
teacher for eight hours per day, one or two days per week,
and that he continued to use custom orthotics and performed
stretching exercises that helped him get through the day. He
stated that he was able to bear his full weight on his feet
but walked with an abnormal gait and experienced abnormal
shoe wear. He reported swelling of his heel, especially on
the right, calluses on the inside of the large toes and
outside of the heels, and pain on palpation of the arch and
heel.
The Board concludes that prior to January 24, 2007, the date
of the first examination by a private podiatrist, a rating in
excess of 10 percent for bilateral plantar fasciitis with
calcaneal spurs is not warranted. Service treatment records
and the pre-retirement VA examination showed that the Veteran
experienced foot pain but was able to obtain relief and
perform his military duties with the use of custom orthotics.
A higher rating was not warranted because there was no
credible evidence in the record of abnormal gait, swelling,
callosities, marked deformities, or other indications of more
than moderate symptoms.
The Board further concludes that effective January 24, 2007 a
staged rating of 30 percent is warranted because the
podiatrist noted some, but not all, of the symptoms
appropriate for the higher rating. The podiatrist noted
abnormal weight bearing and callosities, abnormal gait,
subcutaneous swelling on ultrasound imaging, minor pronation,
and the need for more aggressive treatment with injections
and foot strapping. However, the Board also notes that the
degree of pronation was mild, and there have been no
observations by any clinicians of externally observable
swelling or vascular or neurological deficits. The most
recent examination by the VA fee-service podiatrist, who was
not able to review the earlier examination reports, noted
mild pronation and callosities representative of abnormal
weight bearing but no abnormal gait. The Veteran reported
that he is able to work a full day as a school teacher,
standing for up to three hours and walking up to three miles.
Nevertheless, as there are some symptoms associated with the
higher rating, and resolving all doubt in favor of the
Veteran, the Board grants an increased staged rating of 30
percent, effective January 24, 2007, the date of the evidence
that first established symptoms associated with the higher
rating.
A rating in excess of 30 percent is not warranted at any time
during the period covered by this appeal because the
Veteran's symptoms are not pronounced with extreme tenderness
of plantar surfaces of the feet, marked inward displacement
and severe spasm of the tendo achillis on manipulation with
no improvement by orthopedic shoes or appliances. The Board
considered whether a higher rating is warranted for
additional functional loss on use or during flare-ups. The
Board notes that the Veteran is restricted in participation
in sports and strenuous exercise. However the Board
concludes that a 30 percent rating adequately contemplates
the current level of disability because the Veteran is able
to work part time in a position that involves standing for
extended periods of time. He is able to operate a motor
vehicle and is not restricted in any other activities of
daily living. Furthermore, a separate rating for each foot
is not warranted because the applicable diagnostic code
explicitly provides ratings for both unilateral and bilateral
disabilities.
The Board finds that there is no basis for referral for
consideration of an extra-schedular rating in this case. 38
C.F.R. § 3.321(b)(1) (2009). The Veteran has not presented
any evidence that his particular service-connected bilateral
foot disorder results in a unique disability that is not
addressed by the rating criteria. Specifically, there is no
evidence of frequent hospitalization or marked interference
with employment that would suggest that the Veteran is not
adequately compensated by the regular schedular standards.
Thus, there is no basis for referral of the case for
consideration of an extraschedular disability evaluation.
See Thun v. Peake, 22 Vet. App 111, 115-16 (2008); see also
Bagwell v. Brown, 9 Vet. App. 337 (1996).
ORDER
An increased initial rating in excess of 10 percent prior to
January 24, 2007 for plantar fasciitis with calcaneal spurs
is denied.
An increased staged rating of 30 percent, but not greater,
effective January 24, 2007 for plantar fasciitis with
calcaneal spurs is granted, subject to the legal criteria
governing the payment of monetary benefits.
____________________________________________
DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs